Supreme Court keeps upcoming health care decision secret

Sunday, June 24, 2012 | 5:17 p.m. CDT

BY
JESSE J. HOLLAND/The Associated Press

WASHINGTON — It's the biggest secret in a city known for not keeping them.

The nine Supreme Court justices and more than three dozen other people have kept quiet for more than two months about how the high court is going to rule on the constitutionality of President Barack Obama's health care overhaul.

This is information that could move markets, turn economies and greatly affect this fall's national elections, including the presidential contest between Obama and Republican challenger Mitt Romney. But unlike the Congress and the executive branch, which seem to leak information willy-nilly, the Supreme Court, from the chief justice down to the lowliest clerk, appears to truly value silence when it comes to upcoming court opinions, big and small.

No one talks, and that's the way they like it.

Contrast this with the rest of the government, which couldn't keep secret President Barack Obama's direct role in supervising an unprecedented U.S. cyberattack on Iran's nuclear facilities or the existence of a double agent inside al-Qaida's Yemen branch who tipped the U.S. to a new design for a bomb to put on a jetliner.

As Republicans air their suspicion that the leaks might be deliberate to enhance the Obama administration's stature, Attorney General Eric Holder has appointed two U.S. attorneys to investigate those two disclosures and probably additional recent national security leaks. Because far more people, of necessity, know about such secret national security operations, those investigators must examine hundreds, even thousands, of federal workers who might have known at least a chunk of the guarded information.

The Supreme Court is expected to rule on the law in the upcoming week or so. Justice Ruth Bader Ginsburg, speaking to a lawyers' convention June 15, noted a steady stream of "rumors and fifth-hand accounts" in the media about what the high court was likely to do.

"My favorite among the press pieces wisely observed: 'At the Supreme Court ... those who know don't talk, and those who talk don't know,'" she said.

The justices, of course, know, having officially voted on the results the same week they heard arguments. But they are not the only ones in the loop: Each of the nine justices has four clerks who know not only how their justice voted but also how the other justices stand because these clerks help research and craft the majority opinions and dissents that are circulated for justices to sign if they agree.

In addition to these 45 people surely in the know, there are an assorted number of secretaries, aides, security guards, janitors, support staff and family members keenly attuned to the inner workings of the Supreme Court's upper floors where the justices keep their chambers. At the last moment possible, printers who prepare the paper opinions to be handed out will know.

If any of these people also know anything about how the case is going to come out, they're not talking.

Unlike the president, who needs to be re-elected every four years and needs positive publicity to help, the justices have lifetime appointments and don't need favorable publicity to keep their jobs. Unlike the other constitutional branches, the justices rarely appear on television and don't even allow cameras inside their main workplace, the Supreme Court.

But that silence trickles down even beyond the justices.

Those 36 clerks, who have inside knowledge of the court's deliberations, are just as mum as their bosses despite growing up in the Internet age of bloggers, camera-phones, social media and instantly free-flowing information.

Clerks are warned from day one not to reveal anything about their work, said lawyer Stephen Miller, who clerked for Justice Antonin Scalia.

Miller remembered Chief Justice William Rehnquist warning all of the clerks in his year of the perils of leaking information from the court. "Leaks were unacceptable," Miller remembers the chief justice sternly telling all of them.

In addition to losing their job, one of the most highly sought positions for up-and-coming lawyers in the nation because it usually leads to a six-figure salary upon completion, any clerk caught revealing information would immediately be ostracized in the legal profession, Miller said. No law firm would be willing to take a chance on a lawyer who talks or leaks information to outsiders without permission.

If the leaking clerk isn't caught, the entire class would have that stigma, leading to strong peer pressure to stay silent, he said.

"So what's in it for a clerk to leak?" Miller said.

The court's mystique and reputation for silence means there have been no special warnings from the justices for employees not to spill the beans on the health care decision. It's not that the health care decision isn't important. It's that clerks, secretaries, aides, janitors, and all of the other staff know they are not supposed to talk about anything the court does until the official announcement.

That doesn't mean that the court's always been perfect at withholding information until its formal release. For example, the court inadvertently posted opinions and orders on its website about a half hour too soon in December.

The last apparent leak occurred more than 30 years ago when Tim O'Brien, then a reporter for ABC News, informed viewers that the court planned to issue a particular opinion the following day. Chief Justice Warren Burger accused an employee in the printing shop of tipping O'Brien and had the employee transferred to a different job.

Miller noted that all the lampposts at the entrances and exits of the Supreme Court building are supported by turtle sculptures, which can also be found elsewhere in the building. It's an apt symbol for the court.